Johnson v. National Super Markets, Inc.

752 S.W.2d 809, 1988 Mo. App. LEXIS 254, 1988 WL 23709
CourtMissouri Court of Appeals
DecidedMarch 22, 1988
DocketNo. 53121
StatusPublished
Cited by9 cases

This text of 752 S.W.2d 809 (Johnson v. National Super Markets, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. National Super Markets, Inc., 752 S.W.2d 809, 1988 Mo. App. LEXIS 254, 1988 WL 23709 (Mo. Ct. App. 1988).

Opinion

CRANDALL, Judge.

Defendant, National Super Markets, Inc., appeals from a judgment in favor of plaintiff, Nathan Johnson, entered pursuant to a jury verdict. The jury awarded plaintiff $60,000 actual damages for injuries he sustained in October 1981, when plaster and cement fell on his head from the underside of an outdoor canopy of one of defendant’s supermarkets.1 We affirm.

In its first point, defendant claims that the trial court erred in excluding (1) portions of plaintiff’s treating physician’s deposition regarding the treatment of one Keith Johnson and (2) testimony regarding three subsequent claims made by plaintiff for injuries he sustained in three accidents which occurred after the incident giving rise to the present action.

We first address the issue of the exclusion of statements made by plaintiff’s treating physician. That testimony pertained to his treatment of another patient by the name of Keith Johnson, who had previously settled a separate claim against defendant. The physician was unavailable at trial and his deposition was read into evidence. During portions of his deposition, the physician confused plaintiff’s medical records with those of Keith Johnson. Defendant argues that this testimony should have been admitted for the purpose of impeaching the credibility of the physician’s testimony that Keith Johnson and plaintiff were two different individuals. The crux of defendant’s argument is that the deposition testimony could have permitted the jury to conclude that the physician “knowingly treated [plaintiff under two different names so that [plaintiff] might profit more” from two separate claims against defendant, one brought under the name of Nathan Johnson and one brought under the assumed name of Keith Johnson.

Although a trial court is vested with substantial discretion as to the scope and extent of cross-examination of a witness, that discretion should not be exercised to deny absolutely the right to disclose collateral matters bearing on the witness’s credibility. Myers v. City of Palmyra, 431 S.W.2d 671, 679 (Mo.App.1968). Here, the excluded testimony consisted of the physician’s responses to questions by defense counsel about an exhibit. The physician identified the exhibit as plaintiff's medical records when in actuality the exhibit consisted of the medical records of Keith Johnson. The physician proceeded to answer questions about plaintiff based on information contained in Keith Johnson’s records.

The argument that this testimony discredits the physician’s testimony that Keith Johnson and plaintiff were not the same person is tenuous. The jury could just as easily have inferred that the physician was, in fact, confused when handed an exhibit about a patient, Keith Johnson, when the case involved another patient, Nathan Johnson. It is doubtful that confronting the physician with this type of inconsistency would lead the jury to believe that the physician was knowingly involved in concealing the dual identity of plaintiff.

In addition, defendant was not prejudiced by the exclusion of the allegedly contradictory deposition testimony. Clearly, the issue of the shared identity of plaintiff and Keith Johnson was before the jury. Defendant was permitted to cross-examine the physician in his deposition about his treatment of Keith Johnson and to elicit similarities between Keith Johnson and plaintiff regarding height, weight, birth date, employment, and home address. One witness who worked for defendant identified plaintiff as the Keith Johnson who had signed a release in 1982 for injuries relating to another incident at another of defendant’s [812]*812stores. A handwriting expert testified as to the similarities between the signature of Keith Johnson and that of plaintiff. The testimony of two other witnesses regarding employment records also indicated the possibility that Keith Johnson and plaintiff were one and the same person. Given the trial court’s admission of the above-mentioned evidence, there was no abuse of discretion in excising the controverted testimony from the physician’s deposition testimony read to the jury.

We next consider the issue of the trial court’s refusal to permit testimony about three subsequent claims2 to which plaintiff was a party. Defendant asserts that evidence of subsequent claims should have been admitted because it was “relevant to causation and credibility.”

With regard to credibility, defendant focuses on plaintiff’s answers to specific interrogatory questions in which he denied having been injured in any occurrence “since the incident” in this case. Defendant contends that testimony by three independent witnesses as to subsequent claims made by plaintiff would have impeached plaintiff’s credibility.

In order to impeach a witness with a prior inconsistent statement, it is axiomatic that a proper foundation be laid. The witness must be given a chance to refresh his recollection of the prior statement and to admit, deny, or explain it. Frey v. Barnes Hosp., 706 S.W.2d 51, 55 (Mo.App.1986). To lay the requisite foundation, it is necessary to ask the witness whether he made the statement. Id. It is essential to quote the prior statement and to point out the precise circumstances under which it was made. Id.

In the present case, plaintiff was not confronted with his answers to the interrogatories and never had an opportunity to explain or to deny any inconsistent statements contained therein. The only question asked during cross-examination which approximated a confrontation of plaintiff about his subsequent injuries is the following exchange:

[Defense Counsel]: While you were being treated by Dr. Payne for the injuries resulting from this incident you didn’t sustain any other injuries to your head, neck, or back, did you?
[Plaintiff]: Not that I can remember.

That question, however, does not warrant the introduction of extrinsic evidence to impeach plaintiff. The offer of proof indicates that the three witnesses were testifying about three different injuries plaintiff sustained in 1986. Plaintiff’s physician testified that he had treated plaintiff for less than one year for injuries plaintiff sustained in the 1981 accident. Plaintiff’s denial at trial of any injuries sustained while he was under the physician’s care in 1981-1982 could not be impeached by evidence of injuries he subsequently sustained in 1986.

Defendant’s argument that evidence of subsequent injuries goes to the issue of causation is also without merit. Evidence of subsequent claims is admissible because (1) it bears upon plaintiff’s credibility and (2) when a plaintiff is seeking to recover for a permanent injury, it bears upon the issue of causation. Stanziale v. Mustek, 370 S.W.2d 261, 269 (Mo.1963); see also Burrous v. American Airlines, Inc., 639 S.W.2d 263 (Mo.App.1982). Where there is no showing of fraud and there is nothing particularly unreasonable or improbable about the number or character of the claims, it is improper to admit evidence of other claims. Dietz v. Southern Pacific Ry. Co., 28 S.W.2d 395

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Bluebook (online)
752 S.W.2d 809, 1988 Mo. App. LEXIS 254, 1988 WL 23709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-national-super-markets-inc-moctapp-1988.